Communicated on 6 April 2018

FIRST SECTION

Application no. 6386/17 B. Å». against Poland lodged on 17 January 2017

STATEMENT OF FACTS

The applicant, Mr B. Ż., is a Polish national who was born in 1969 and lives in B. He is represented before the Court by Mr J. Ludziak, a lawyer practising in Wałbrzych.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

Between 2010 and 2012, the applicant was accused of having on several occasions sexually abused L. (born in 2002), who was his wife’s niece. The incidents happened when the girl had been left by her mother at the applicant’s apartment overnight.

The victim was interviewed on 26 April 2013 at the investigation stage of the proceedings. The applicant did not attend the questioning. At that time he was not represented by a defence lawyer and therefore had no possibility to question L. There was no video-recording of the questioning.

Subsequently, the applicant was charged with rape and two attempts of rape against a minor. He did not plead guilty.

The opinion of two expert psychiatrists confirmed that he did not have a sexual preferences disorder.

During the trial, the court obtained testimony from L.’s three friends, who were minors, who had confirmed to some extent that L. had told them in 2012 about some elements of the applicant’s behaviour in 2010. The other witnesses refused to testify as they were the applicant’s and the victim’s closest relatives. The court also relied on L.’s diary. Its content was described by a police officer who had seen it before it had been destroyed by the victim. It also referred to pornographic photographs that the applicant had kept on his computer, as there was a reasonable suspicion that they might have concerned minor children.

On 4 February 2014 the Jelenia Góra Regional Court ( Sąd Okręgowy ) found the applicant guilty of sexual offences against a minor under 15 years old, that is of a rape in October 2010, and two attempts of rape between March and October 2012. It imposed a cumulative sentence of four years’ imprisonment on the applicant. He was also prohibited from any personal contact with the victim, L., for five years.

The court summarised L.’s statement, which had described how the applicant had behaved when she had stayed at his apartment overnight. The court relied mostly on the victim’s first questioning of 26 April 2013.

L.’s credibility was confirmed by an expert psychologist who had been present during her questioning on 26 April 2013.

The applicant appealed against the judgment of the Jelenia Góra Regional Court on the ground that he had not had a possibility to question the victim, although there were new circumstances which would have justified this.

On 28 August 2014 the Wrocław Court of Appeal ( Sąd Apelacyjny) upheld the judgment. The court held that the applicant had not lodged a request for a second questioning of the victim by virtue of Article 185a § 1 of the Code of Criminal Procedure (“CCP”), although he was entitled to do so. Moreover, his defence lawyer had not proved any new circumstances which would have justified this. The court also noted that there had been no requirement for a video recording of the minor victim’s hearing according to the relevant domestic provisions.

The applicant lodged a cassation appeal.

On 16 April 2015 the Supreme Court (Sąd Najwyższy ) quashed the judgment and remitted the case to the Wrocław Court of Appeal. It held that the appellate court should have questioned the victim again, especially as the first questioning had not been recorded, despite a clear obligation under Article 147 § 2 (2) of CCP.

On 11 June 2015 the Wrocław Court of Appeal again upheld the judgment of the Jelenia Góra Regional Court of 4 February 2014.

During the proceedings, the court commissioned a new expert opinion. In her opinion of 28 May 2015, an expert psychologist found that another questioning would have been too traumatic for L. because of her emotional state, which had lasted throughout the entire three years since the crimes. Therefore the court denied the applicant’s request for L. to be questioned again. The court referred to the Supreme Court’s judgment of 7 May 2013 (case no. III KK 380/12). According to that judgment, an accused’s request for a re-hearing of a minor victim (under Article 185a of CCP) did not amount to the necessity of questioning the victim a second time. Such a request should, in any event, be subject to the general criteria for the admissibility of evidence.

On 29 July 2016 the Supreme Court dismissed the applicant’s cassation appeal. The court underlined that the applicant had not requested that the victim be questioned again during the proceedings before the first-instance court. It also noted that the Jelenia Góra Regional Court had provided other safeguards in order to preserve the applicant’s right to defence. In particular, L.’s testimony had been read during the court’s session and the applicant had had a possibility to comment on it. Furthermore, the credibility of L.’s testimony was confirmed by an expert psychologist. The applicant had the opportunity to question her findings.

B. Relevant domestic law and practice

Article 185a of the Code of Criminal Procedure (“CCP”), as in force at the material time, provides:

Ҥ 1 In cases concerning offences described in chapters XXV and XXVI of the Criminal Code [sexual offences and offences against morality], a victim who, at the time of the hearing, is less than 15 years old should be questioned only once, unless there are new circumstances which need to be clarified in a separate interview or the accused was not represented by a lawyer during the first interview and so requests.

§ 2 The interview shall be conducted at a court hearing with the participation of an expert psychologist. The prosecutor, defence lawyer and the victim’s representative shall have the right to attend the hearing.

§3 The record of the interview shall be read out at the trial; if a video or audio recording was made, it shall be played back at the trial as well.”

In accordance with Article 147 § 2 (2) of CCP, unless there are technical obstacles, the hearing of a victim as referred to in Article 185a should be filmed.

In its judgment of 24 November 2009 (case no. III KK 176/09) the Supreme Court held: “In cases in which victims of the crimes specified in chapters XXV and XXVI of the Criminal Code are under 15 years old, one should strive to ensure that the suspect already has a defence lawyer during the first hearing of the victim. The hearing under Article 185a should be held after the charges have been brought against the suspect, that is at the in personam investigation stage of the proceedings, and not in the in rem stage. At that stage it is possible to appoint legal aid counsel for the suspect, if he has not yet appointed his own lawyer. In such situations, in most cases, it will be possible to preserve the one-time hearing of the minor victim and the right of the accused to a defence will not be affected.”

COMPLAINT

The applicant complains under Articles 6 § 1 and 6 § 3 (d) of the Convention that his right to a fair trial was breached in that he was denied a second hearing of the victim.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge against him? In particular, did the limitations on the rights of the defence in the applicant’s case give rise to a breach of the requirements of Article 6 § 1 of the Convention, taken together with Article 6 § 3 (d)?